2017 No. MENTAL CAPACITY. The Mental Capacity (Suitably Qualified Person) Regulations (Northern Ireland) 2017

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1 S T A T U T O R Y R U L E S OF N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY The Mental Capacity (Suitably Qualified Person) Regulations (Northern Ireland) 2017 Made xx Month 2017 Laid before Parliament xx Month 2017 Coming into operation in accordance with regulation *** To be laid before Parliament The Department of Health, in exercise of the powers conferred by section 14(4) of the Mental Capacity Act (Northern Ireland) 2016 (a), makes the following Regulation: Citation, commencement and interpretation 1.These Regulations may be cited as the Mental Capacity (Suitably Qualified Person) Regulations (Northern Ireland) 2017 and shall come into operation on [date]. (1) In these Regulations the Act means the Mental Capacity Act (Northern Ireland) 2016; approved social worker means a person appointed under section 280 of the Act; Code of Practice means one or more codes of practice made under section 288 of the Act; medical practitioner means a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practice under that Act; registered in relation to nurses and midwives, means registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 by virtue of qualifications in nursing or midwifery, as the case may be. practitioner psychologist means a person who is registered as a practitioner psychologists; nominated person has the same meaning as in Part 3 of the Act; and the Tribunal has the same meaning as in the Act. Persons suitably qualified to make formal capacity assessments 2. (1) A person is suitably qualified to make a formal capacity assessment and provide a statement of incapacity if paragraph (2) and Regulation 3 are met. (2) The person must be one of the following (a) a medical practitioner; (b) a social worker; (a) 2016 c 18.

2 (c) a registered nurse or midwife; or (d) a practitioner psychologist. Further requirements to be suitably qualified 3. In addition to Regulation 2 for a person to be eligible to make a formal capacity assessment and provide a statement of incapacity the person must (a) have knowledge of the Act and related Code of Practice; (b) have successfully completed training that has been approved by the Department of Health; (c) except in the 24 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (b), the person must, in the 24 months prior to the assessment, completed further training relevant to their role as a suitably qualified person to make a formal capacity assessment; (d) have three years experience in a professional role working with persons who lack capacity; and (e) have the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision making. Sealed with the Official Seal of the *** on *** Address Date Name A senior officer of the Department

3 Draft Regulation laid before the Assembly under Mental Capacity Act (Northern Ireland) 2016, for approval S T A T U T O R Y R U L E S O F N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY SERIOUS INTERVENTIONS AND TREATMENT WITH SERIOUS CONSQUENCES Mental Capacity (Serious Interventions and Treatment with Serious Consequences) Regulations (Northern Ireland) 2017 Laid before the Assembly in draft Made xx Month 2017 Laid before Parliament xx Month 2017 Coming into operation in accordance with Regulation 1. The Department of Health, in exercise of the powers conferred by sections 21(2) and 63(3) of the Mental Capacity Act (Northern Ireland) 2016(a), makes the following Regulation: Citation, commencement and interpretation 4. (1) These Regulations may be cited as the Mental Capacity (Serious Interventions and Treatment with Serious Consequences) Regulations (Northern Ireland) 2017 and shall come into operation on [date]. (2) In these Regulations the Act means the Mental Capacity Act (Northern Ireland) 2016; serious intervention has the same meaning as section 63 of the Act; and treatment with serious consequences has the same meaning as section 21 of the Act. Serious interventions 5.An intervention that does not cause serious and prolonged pain, serious and prolonged distress or serious and prolonged side-effects is not an intervention that falls within an intervention under section 63(1)(b) of the Act. 6.An intervention under section 63(1)(c) of the Act is not serious if it is not prolonged and demonstrable impact. 7.An intervention under section 63(1)(d) of the Act is not serious unless it will have serious consequences over a prolonged period and is not temporary. (a) 2016 ch 18.

4 Treatment with serious consequences 8.An treatment that does not cause serious and prolonged pain, serious and prolonged distress or serious and prolonged side-effects is not a treatment that falls within a treatment under section 21(1)(a) of the Act. 9.A treatment under section 21(1)(c) of the Act is not serious if it is not prolonged and demonstrable impact. 10.An treatment under section 21(1)(d) of the Act is not serious unless it will have serious consequences over a prolonged period and is not temporary. Sealed with the Official Seal of the *** on *** Address Date Name A senior officer of the Department

5 S T A T U T O R Y R U L E S OF N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY The Mental Capacity (Nominated Persons, Appropriate Person, Witnesses and Signatures) Regulations (Northern Ireland) 2017 Made xx Month 2017 Laid before Parliament xx Month 2017 Coming into operation in accordance with regulation *** To be laid before Parliament The Department of Health, in exercise of the powers conferred by section 79 of the Mental Capacity Act (Northern Ireland) 2016 (a), makes the following Regulation: Citation, commencement and interpretation 11. (1) These Regulations may be cited as the Mental Capacity (Nominated Persons, Appropriate Person, Witnesses and Signatures) Regulations (Northern Ireland) 2017 and shall come into operation on [date]. (2) In these Regulations the Act means the Mental Capacity Act (Northern Ireland) 2016; and X means a person making an appointment, revocation or declaration mentioned in section 79(1) of the Act. Witnesses and persons unable to sign 12. (1) A person can only be a witness in relation to the formalities under section 79 of the Act is he or she (a) is ordinary resident in Northern Ireland; (b) has known X personally for at least two years; (c) is not a relative to X; and (d) is able to provide valid photo identification. (2) A person is a relative if he or she is X s (a) mother or father; (b) brother or sister; (c) son or daughter; (d) grandparent or grandchild; or (e) step child or step parent. (a) 2016 c 18.

6 (3) A person of half-blood is for the purpose of paragraph (2) to be treated as whole blood. 13. (1) If X is physically unable to sign but has capacity to make such an appointment, revocation or declaration section 79(2)(a) is replaced by paragraph (2). (2) an addition sheet is added to the document containing the appointment, revocation or declaration and the addition sheet must include (a) a signature in his or her own name by a person who is unconnected with X; (b) a statement that the signature on the addition sheet is on behalf of X and that in his or her opinion X has capacity to make an appointment, revocation or declaration; and (c) signed statements by two witnesses who must be unconnected with X stating that in their opinion X (i) understands the effect of the appointment, declaration or revocation; and (ii) has not been subject to any undue pressure in relation to the appointment, declaration or revocation. Sealed with the Official Seal of the *** on *** Address Date Name A senior officer of the Department

7 S T A T U T O R Y R U L E S O F N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY The Mental Capacity (Independent Mental Capacity Advocates) Regulations (Northern Ireland) 2017 Made xx Month 2017 Laid before Parliament xx Month 2017 Coming into operation in accordance with regulation 1. The Department of Health, in exercise of the powers conferred by sections 86, 87, 88, 89 and 95 of the Mental Capacity Act (Northern Ireland) 2016 (a), makes the following Regulation: Citation, commencement and interpretation 14. (1) These Regulations may be cited as the Mental Capacity (Independent Mental Capacity Advocates) Regulations (Northern Ireland) 2017 and shall come into operation on. (2) In these Regulations the Act means the Mental Capacity Act (Northern Ireland) 2016; The Department means the Department of Health; HSC trust has the same meaning as under the Act; independent mental capacity advocate means a person who has been appointed by an HSC trust under section 91 of the Act in accordance with the provisions in section 86(4) of the Act; P has the same meaning as in section 86 of the Act; and unconnected with has the same meaning as in section 304 of the Act. Arrangements of independent mental capacity advocates 15.Each HSC trust must make arrangements to ensure that they have appointed sufficient numbers of independent mental capacity advocates that one can be instructed under section 91 of the Act without delay. 16. (1) A HSC trust may not make a direct financial arrangement with an independent mental capacity advocate but must make arrangements with a provider of independent mental capacity advocates. (2) A provider of independent mental capacity advocates cannot enter into arrangements with a HSC trust for independent mental capacity advocates unless the provider has been approved by the Department as a provider for independent mental capacity advocates. (3) When considering if a provider of independent mental capacity advocates should be approved as a provider the Department must consider (a) 2016 ch. 18.

8 (a) the provider s ability to provide independent mental capacity advocates; (b) the provider s independence from the HSC trust; (c) any other factors that would render the provider unsuitable as a provider. Requirements on independent mental capacity advocates 17.A HSC trust can only appoint a person to be an independent mental capacity advocate if he or she (a) has completed training approved by the Department; (b) has completed further training approved by the Department at intervals required by the Department; (c) has experience working with persons who lack capacity, or have other similar experience; (d) does not have any unspent criminal convictions. 18.If P is under the age of 18 a HSC trust can only instruct an independent mental capacity advocate who has experience in working with children. 19. (1) When an independent mental capacity advocate has been instructed he or she must carry out the following steps when supporting and representing P (a) ensuring that the act in relation to which the independent mental capacity advocate is instructed is one that requires an independent mental capacity advocate; (b) if practicable and appropriate interview the person; (c) examine any relevant records; (d) if practicable and appropriate consult persons who are in engage in the care, treatment or welfare of the person in a professional capacity or for remuneration; (e) if practicable and appropriate consult with other persons, including the nominated person if there is a nominated person; (f) taking all reasonable steps to obtain all relevant information about the person for understanding the person s best interests; (g) evaluating all the information available to support the determination of the person s best interests and consider what is the least restrictive option; and (h) provide a written report to the person determining best interests. (2) A written report under Regulation 6(1)(h) can be in any form but must contain: (a) who carried out the functions of the independent mental capacity advocate; (b) how the required steps in Regulation 6(1) have been carried out; (c) how the independent mental capacity advocate has supported and represented the person who lacks capacity s best interests; and (d) any recommendations, if any, in relation to the best interests which it appears relevant to make. (3) A written report under Regulation 6(1)(h) must be signed by the independent mental capacity advocate. Other provisions in relation to independent mental capacity advocates 20.An appropriate healthcare professional who can request a independent mental capacity advocate under section 88 is any person who is suitably qualified to make a statement of incapacity under section 14 of the Act. 21. (1) Before an independent mental capacity advocate can be requested under section 88 of the Act P must be provided the following information

9 (a) information about the role of an independent mental capacity advocate, including powers and requirements; (b) notice that an independent mental capacity advocate will have access to P s sensitive personal information if instructed; (c) that an independent mental capacity advocate will be instructed unless refused; (d) how to refuse an independent mental capacity advocate; and (e) how to revoke an independent mental capacity advocate after one has been instructed. (2) The information can be provided in any form and must not be personally tailored to P, although the information must be provided making it as accessible to P as practicable. 22.A person is able to act as a witness for the purpose of section 95(2)(b) if he or she is unconnected with the person making the declaration or revocation. 23. (1) If P is physically unable to sign a declaration under section 90 or 93 but has capacity to make the declaration the requirements in section 95(2) is replaced by paragraph (2). (2) For the purpose of section 90(3) or 93(4) of the Act, the conditions of section 95 of the Act are met if (a) an addition sheet is added to the unsigned declaration or revocation; (b) the addition sheet include a statement that the signature on the addition sheet is on behalf of a person who cannot physically sign but has capacity to do so ( X ); (c) another person who is unconnected with X can sign the addition sheet in their own name on behalf of X; and (d) the signature in sub-paragraph (c) must be witnessed by two persons, both who must be unconnected with X, certifying that in their opinions X (i) understands the effect of the declaration or revocation; and (ii) has not been subjected to any undue pressure in relation to the declaration or revocation. Sealed with the Official Seal of the *** on *** Address Date Name A senior officer of the Department

10 S T A T U T O R Y R U L E S O F N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY Mental Capacity (Community Residence Requirements) Regulations (Northern Ireland) 2017 Made xx Month 2017 Laid before Assembly xx Month 2017 Coming into operation in accordance with regulation 1. The Department of Health, in exercise of the powers conferred by sections 31 and 33 of the Mental Capacity Act (Northern Ireland) 2016(a), makes the following Regulation: Citation, commencement and interpretation 24. (1) These Regulations may be cited as the Mental Capacity (Community Residence Requirements) Regulations (Northern Ireland) 2017 and shall come into operation on [date]. (2) In these Regulations the Act means the Mental Capacity Act (Northern Ireland) 2017; community residence requirement means a requirement imposed under section 30 of the Act; and P has the same meaning as in section 31 of the Act. Healthcare professional 25.A healthcare professional for the purpose of section 31 of the Act is a person who is (a) suitably qualified to make formal assessments of capacity under section 14 of the Act; and (b) involved in the care and treatment of the person who lacks capacity. Duties in relation to persons subject to community residence requirements 26.The HSC trust in which P is resident must arrange for every person subject to a community residence requirement to be visited at intervals of not more than 3 months by a person who is suitably qualified to make formal assessments of capacity under section 14 of the Act, and at least one such visit in any year shall be made by a medical practitioner that is suitably qualified to make formal assessments of capacity under section 14 of the Act. Sealed with the Official Seal of the *** on *** Name (a) 2016 ch. 18.

11 Address Date A senior officer of the Department

12 S T A T U T O R Y R U L E S O F N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY The Mental Capacity (Authorisations and Extensions) Regulations (Northern Ireland) 2017 Made xx Month 2017 Laid before Assembly xx Month 2017 Coming into operation in accordance with regulation *** To be laid before Assembly The Department of Health, in exercise of the powers conferred by sections 39, 42, 43 and 50 and Schedule 1 paragraphs 5, 6, 7, 8, 14 and 19, Schedule 2 paragraphs 1, 2, 3, 4, 7, 9, 11, 13 and 14 and Schedule 3 paragraphs 3, 4, 5, 6, 7, and 9 of the Mental Capacity Act (Northern Ireland) 2016(a), makes the following Regulation: Citation, commencement and interpretation PART 1 General 27. (1) These regulations may be cited as the Mental Capacity (Authorisations and Extensions) Regulations (Northern Ireland) 2017 and shall come into operation on [date]. (2) In these Regulations the Act means the Mental Capacity Act (Northern Ireland) 2016; admission report has the same meaning as in paragraph 11 of Schedule 2 of the Act; application means an application under Schedule 1 of the Act; approved social worker means a person appointed under section 280 of the Act; care or treatment includes care and treatment; Department means the Department of Health; exception certificate has the same meaning as in paragraph 9 of Schedule 2 of the Act; extension authorisation means a report under section 37 or 38 of the Act; further admission report has the same meaning as in paragraph 13 of Schedule 2 of the Act; further report has the same meaning as in paragraph 14 of Schedule 2 of the Act; HSC trust has the same meaning as in the Act; independent mental capacity advocate has the same meaning as in the Act; (a) 2016 chapter 18.

13 managing authority has the same meaning as in the Act; measure has the same meaning as in section 41 of the Act; medical practitioner has the same meaning as in the Act; nominated person has the same meaning as in the Act; P means a person who lacks capacity and for whom a measure is proposed; practitioner psychologist means a person who is registered as a practitioner psychologists; relevant trust has the same meaning as in the Act; registered in relation to nurses and midwives, means registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 by virtue of qualifications in nursing or midwifery, as the case may be. responsible medical practitioner has the same meaning as in paragraph 1 of Schedule 2 of the Act subject to the conditions in Regulation 8; responsible person has the same meaning as in section 42 of the Act; RQIA means the Health and Social Care Regulation and Quality Improvement Agency; short-term detention authorisation means a report made under paragraph 2 of Schedule 2 of the Act; treatment has the same meaning as in the Act; the Tribunal means the Review Tribunal constituted under Article 70 of the Mental Health (Northern Ireland) Order 1986; trust panel means a panel constituted under Schedule 1 of the Act in accordance with section 297 of the Act; and unconnected has the same meaning as in the Act. PART 2 Schedule 1 authorisations Persons who can make a Schedule 1 application 28. A person can make an application under Schedule 1 of the Act if he or she is (a) suitably qualified to make a formal capacity assessment and provide a statement of incapacity under section 14 of the Act; (b) involved in the care or treatment of P; and (c) not the same person making the medical report required in paragraph 6(1)(b) of Schedule 1. Form of application 29. (1) An application for authorisation under Schedule 1 of the Act must include (a) name and address of P, P s Health and Social Care number (if available), and P s current location; (b) name and address of the applicant, how the applicant has met the requirement in Regulation 2 and how the applicant is unconnected with P; (c) name and address of the person in charge of P s care or treatment; (d) what measure is being applied for; (e) the length of authorisation required;

14 (f) a declaration by the applicant in the words I confirm I am eligible to make this application. To the best of my knowledge all information in this application is correct and all required information is included. ; (g) the following annexes: (i) Annex A detailing the measure subject to paragraph (2); (ii) Annex B including the statement of incapacity; (iii) Annex C including a best interests determination statement subject to paragraph (3); (iv) Annex D including a statement that the additional conditions are met subject to paragraph (4); (v) Annex E providing details on consultations with the nominated person subject to paragraph (5); (vi) Annex F containing a report, in the form required by regulations under section 87 of the Act, by the independent mental capacity advocate; (vii) Annex G containing a medical subject to Regulation 4; (viii) Annex H containing a care plan subject to Regulation 6; and (ix) if the measure is a deprivation of liberty or community residence requirement, Annex I including a statement whether P has capacity to apply to the Review Tribunal in respect of an authorisation by the trust panel subject to paragraph (6). (2) The details about the measure must include (a) any conditions in relation to the measure; (b) in the case of treatment with serious consequences, and the nominated person reasonably objects, the place where the treatment will take place; (c) in the case of an attendance requirement (i) the place that has to be attended; or (ii) authorisation for a named HSC trust to specify the place; and (iii) the times and intervals of the attendance requirement; or (iv) authorisation for a named HSC trust to specify the times and intervals of the attendance requirement. (d) in the case of a community residence requirement (i) the place, including which HSC trust it is in, of required residence; or (ii) authorisation for a named HSC trust to specify the place; and (iii) any conditions requiring P to allow healthcare professionals to access P at a place where P is living; and (iv) any conditions requiring P to attend particular places and times or intervals for the purpose of training, education, occupation or treatment with the following condition (aa) (bb) (cc) either at a place specified in the application or an authorisation for a named HSC trust to specify the place; and either at times or intervals specified in the application or an authorisation for a named HSC trust to specify the times or intervals. and (e) in the case of a detention amounting to a deprivation of liberty the name of the place where care or treatment is available. (3) A best interests determination must include (a) details about the decision including (i) details of the decision; (ii) why it has to be taken; and

15 (iii) when it has to be taken. (b) details about the options including (i) what the options are; and (ii) the least restrictive options. (c) details of P s views on the options, if any; (d) details about the opinions of others that have been consulted where practicable and appropriate including (i) who has been consulted; (ii) what are others views; and (iii) how have any disagreements been dealt with. (e) details about the relevant circumstances, of which persons involved in the determination are aware of, including (i) the social circumstances; (ii) views of carers and social workers, if involved with P, their involvement with P is relevant to the decision and it is practicable to establish their views. (f) details about P s past and present wishes and feelings and beliefs and values; and (g) any further details which are relevant to the best interests determination. (4) (a) The additional conditions are (i) for treatment with serious consequences the prevention of serious harm condition in section 22 of the Act; (ii) for deprivation of liberty the prevention of serious harm condition in section 25(5) of the Act; (iii) for attendance requirement the receipt of treatment condition in section 28(5) of the Act; and (iv) for community residence requirement the prevention of harm condition in section 30(4) of the Act. (b) A statement that the additional conditions are met must be made by the medical practitioner making the medical report and must include (i) name of P; (ii) name and address of the person making the statement; (iii) how P meets the additional conditions; (iv) time and date the statement is made; and (v) signature by the person making the statement. (5) Details on the consultation with the nominated person must include (a) notification if the nominated person supports the application or not, or has no opinion as to whether the measure is in P s best interests; and (b) how the nominated person has been consulted, the views of the nominated person and how any disagreements have been dealt with. (6) The statement required by paragraph 6(2) of Schedule 1 of the Act must include (a) details that the assessment has been carried out, by whom it was carried out and when; (b) specification of which of the things in section 4(1)(a) to (d) in the Act that P is, in the assessor s opinion, not able to do in relation to the measure because of an impairment of, or disturbance in the functioning of, the mind or brain; (c) a statement with the words In my opinion the person in section 1 of the application lacks (or probably lacks) capacity to decide whether an application to Tribunal in relation to an authorisation granted by the trust panel should be made. ; and (d) signature by the person making the assessment.

16 (7) For avoidance of any doubt details of a best interests determination as per paragraph (5) must always consider all steps in section 7 of the Act. Medical report 30. The medical report must contain (a) name of the medical practitioner and how the medical practitioner is unconnected with P; (b) name, address and Health and Social Care number (if available) of P; and (c) how the nominated person has been consulted, the views of the nominated person and how any disagreements have been dealt with. 31. (1) For avoidance of any doubt when a medical practitioner makes the statement in paragraph 7(2) of Schedule 1 of the Act or paragraph 5(1)(b) of Schedule 3 of the Act (the statement that in that person s opinion the criteria for authorisation are met in relation to the measure for which the application requests authorisation) the medical practitioner can rely on information provided by others when forming an opinion, including information required for the application as found in Regulation 29. (2) If the information relied upon is information required to be provided in the application under Regulation 29 it is sufficient to make reference to where that information is available (to avoid unnecessary duplication). Care plan 32. The care plan must include (a) name and address of P and P s current location; (b) what treatment is to be provided to necessitate the application; (c) how P s care or treatment is to be managed during the duration of the authorisation period; and (d) what actions are to be done to ensure the measure can be ended as soon as practicable. Information 33. (1) When an application is received by the relevant trust it must as soon as practicable provide the information in paragraph (2) to the persons in paragraph (3). (3) The information that must be provided includes (a) the application, including all annexes; (b) the procedure of the trust panel; and (c) how to make representation to the trust panel. (4) The information in paragraph (2) must be provided to the following persons (a) the nominated person; and (b) any person P has asked the information to be given to. 34. (1) As soon as practicable after granting or refusing an authorisation under paragraph 15 of Schedule 1 of the Act the panel must provide the information in paragraph (2) to the persons in paragraph (3) (2) The information that must be provided includes (a) the application including all annexes; (b) the reason for the granting or refusing an application; and (c) if the application is granted, how to apply to the Tribunal. (3) The information in paragraph (2) must be provided to the following persons (a) the persons in Regulation 33(4)(a) and 33(4)(b);

17 (b) the person who made the application; (c) the managing authority, or HSC trust in the case of a community residence requirement, where the measure will take place; (d) if the measure is within paragraph 2(2)(b) or (d) of Schedule 1 of the Act (deprivation of liberty or community residence requirement) and the application contains a statement mentioned in paragraph 6(2) of Schedule 1 of the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal) the Attorney General; and (e) a person employed by the RQIA who is designated by the RQIA as a person to be provided with information for the purposes of the Act. PART 3 Schedule 2 authorisations Responsible Medical Practitioner, alternative medical practitioner and medical practitioner 35. A medical practitioner can only carry out the functions of the responsible medical practitioner if he or she is (a) suitably qualified to make formal capacity assessment and provide a statement of incapacity under section 14 of the Act; and (b) is approved by the RQIA for the purpose of being a responsible medical practitioner. 36. An alternative medical practitioner who may make a report under paragraphs 11, 13 or 14 in Schedule 2 of the Act is a person who meets the criteria for being a responsible medical practitioner but who is not in charge of P s care. 37. A person is a medical practitioner who can make an exception certificate if they meet the requirements of a responsible medical practitioner in Regulation 35 or that of alternative medical practitioner in Regulation 36 or if he or she is the medical practitioner who made the initial medical report under paragraph 4 of Schedule 2 of the Act. Persons who can make a report 38. A person is an appropriate healthcare professional for the purpose of making a report under paragraph 2 of Schedule 2 of the Act if he or she is (a) suitably qualified to make a formal capacity assessment and provide a statement of incapacity under section 14 of the Act; (b) not the person who made the medical report under paragraph 4 of schedule 2; (c) not the person who made the statement of incapacity relevant to the report; and (d) unconnected with P. Form of Schedule 2 reports and certificate 39. (1) A short-term detention authorisation for examination or examination followed by treatment must include the following (a) name, health and social Care number (if applicable) and address of P; (b) name of the person making the report, how that person has met the requirement in Regulation 38 and how that person is unconnected with P; (c) name and address of the person in charge of P s care; (d) the hospital where P is to be detained;

18 (e) outline of what examination or examination followed by treatment that will be provided to P; (f) the following annexes: (i) Annex A including the statement of incapacity; (ii) Annex B including a best interests determination statement subject to Regulation 29(3); (iii) Annex C including a prevention of serious harm condition statement which must include (aa) name of P; (bb) (cc) (dd) (ee) (ff) name and address of the person making the statement; how the person making the statement is qualified to do so; how P meets the prevention of serious harm condition; time and date the statement is made; and signature by the person making the statement; (iv) Annex D outlining the details on consultation with the nominated person subject to Regulation 29(5); (v) Annex E containing a report, in the form required by regulations under section 87 of the Act, by the independent mental capacity advocate; (vi) if an approved social worker has been consulted as a result of paragraph 6 of Schedule 2 of the Act Annex F containing the views of the approved social worker; (vii) Annex G containing a medical report Schedule 2 paragraph 2(4)(a); and (viii) Annex H including a statement required by Schedule 2 paragraph 2(5) whether P has capacity to apply to the Review Tribunal in respect of the report under Schedule 2 paragraph 2 subject to paragraph (2). (g) and (h) date the report was made and signature by the person making the report. (2) The statement required by Schedule 2 paragraph 2(5) must include (a) details that the assessment has been carried out, by whom it was carried out and when; (b) specification of which of the things in section 4(1)(a) to (d) in the Act that P is, in the assessor s opinion, not able to do in relation to the measure because of an impairment of, or disturbance in the functioning of, the mind or brain; (c) a statement with the words In my opinion the person in section 1 of the application lacks (or probably lacks) capacity to decide whether an application to Tribunal in relation to the short-term detention authorisation. ; and (d) signature by the person making the assessment. 40. An admission report must include the following (a) name and address of P; (b) name of the person making the report, that the person has met the requirement in Regulations 35 or 36, or if not, that the person is a medical practitioner, and how that person is unconnected with P; (c) name and address of the responsible medical practitioner; (d) explanation how the examination requirement, prevention of serious harm condition, lack of capacity and best interests are met; (e) a declaration by the person making the report that the criteria for authorisation are met; and (f) date the report was made and signature by the person making the report. 41. A further admission report must include

19 (a) the information in Regulation 40(a) and (c) to 40(f); and (b) name of the person making the report, that the person has met the requirement in Regulations 35 or 36 and how that person is unconnected with P. 42.A further report must include (a) the information in Regulation 40(a) and (c) to 40(f); and (b) the name of the person making the report, that the person has met the requirement in Regulations 35 or 36 and how that person is unconnected with P. 43. An exception certificate must include (a) name and address of P; (b) name of person making the report and how that person has met the requirements in Regulation 37; (c) how long the delay in admission is authorised to be; (d) why a delay is necessary because of exceptional circumstances and what the exceptional circumstances are; (e) certification that the delay in admission is necessary; and (f) date the certificate was made and signature by the person making the certificate. Medical report 44. (1) The medical report must contain (a) name of the medical practitioner and how the medical practitioner is unconnected with P; (b) name, address and Health and Social Care number (if available) of P; and (c) how the nominated person has been consulted, the views of the nominated person and how any disagreements have been dealt with. (2) For avoidance of any doubt when a medical practitioner makes the medical report the medical practitioner can rely on information provided by others when forming an opinion, including information required for the report as found in paragraph 2(4) of Schedule 2 of the Act and in Regulation 39. (3) If the information relied upon is information required to be provided in the application under Regulation 39 it is sufficient to make reference where that information is available (to avoid unnecessary duplication). Information 45. (1) When a short-term detention authorisation is made the person making the short-term detention authorisation must as soon as practicable give the persons in paragraph (2) the information in paragraph (3). (2) The persons are (a) P; (b) the nominated person; (c) any person P has asked the information to be given to; (d) the managing authority of the hospital where P is to be detained; (e) a person employed by the RQIA who is designated by the RQIA as a person to be provided with information for the purposes of the Act; and (f) if the report contains a statement mentioned in paragraph 2(5) of Schedule 2 of the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal) the Attorney General. (3) The information that must be provided includes

20 (a) a copy of the authorisation; and (b) the procedure of the Review Tribunal and how to apply to the Review Tribunal. Extension authorisation PART 4 Extension by report 46. (1) An extension authorisation must include (a) name and address of P, P s health and social Care number (if applicable) and P s current location; (b) name, role and address of the person completing the extension report; (c) name and address of the person in charge of P s care or treatment; (d) the specified measures; (e) the length of extension; (f) if it is the first extension or a subsequent extension; (g) the following annexes: (i) Annex A including any conditions in relation to the measure and details about the measure subject to paragraph (2); (ii) Annex B including the statement of incapacity; (iii) Annex C including a best interests determination statement subject to paragraph (3); (iv) Annex D including a statement that the additional conditions are met subject to paragraph (4); (v) Annex E outlining the details on consultation with the nominated person subject to paragraph (5); (vi) Annex F containing a report, in the form required by regulations under section 87 of the Act, by the independent mental capacity advocate; (vii) Annex G including a medical report made by the person making the extension authorisation including the statement in section 39(2)(c) of the Act; (viii) Annex H including a responsible person statement subject to paragraph (7); and (ix) Annex I including a statement whether P has capacity to apply to the Review Tribunal in respect of the extension authorisation subject to paragraph (6); and (2) The details about the measure must must include (a) any conditions in relation to the measure; (b) in the case of treatment with serious consequences, and the nominated person reasonably objects, the place where the treatment will take place; (c) in the case of an attendance requirement (i) the place that has to be attended; or (ii) authorisation for a named HSC trust to specify the place; and (iii) the times and intervals of the attendance requirement; or (iv) authorisation for a named HSC trust to specify the times and intervals or the attendance requirement. (d) in the case of a community residence requirement (i) the place, including which HSC trust it is in, of required residence; or (ii) authorisation for a named HSC trust to specify the place; and

21 (iii) any conditions requiring P to allow healthcare professionals to access P at a place where P is residing; and (iv) any conditions requiring P to attend particular places and times or intervals for the purpose of training, education, occupation or treatment with the following condition (aa) (bb) (cc) either at a place specified in the report or an authorisation for a named HSC trust to specify the place; and either at times or intervals specified in the report or an authorisation for a named HSC trust to specify the place. and (e) in the case of a detention amounting to a deprivation of liberty the name of the place where care or treatment is available. (3) A best interests determination must include (a) details about the decision including (i) details of the decision; (ii) why it has to be taken; and (iii) when it has to be taken. (b) details about the options including (i) what the options are; and (ii) the least restrictive options. (c) details of P s views on the options, if any; (d) details about the opinions of others that have been consulted where practicable and appropriate including (i) who has been consulted; (ii) what are others views; and (iii) how have any disagreements been dealt with. (e) details about the relevant circumstances, of which persons involved in the determination are aware of, including (i) the social circumstances; (ii) views of carers and social workers, if involved with P, their involvement with P is relevant to the decision and it is practicable to establish the views. (f) details about P s past and present wishes and feelings and beliefs and values; and (g) any further details which are relevant to the best interests determination. (4) (a) The additional conditions are (i) for treatment with serious consequence the prevention of serious harm condition in section 22 of the Act; (ii) for deprivation of liberty the prevention of serious harm condition in section 25(5) of the Act; (iii) for attendance requirement the receipt of treatment condition in section 28(5) of the Act; and (iv) for community residence the requirement prevention of harm condition in section 30(4) of the Act. (b) A statement that the additional conditions are met must be made by the person making the extension report and must include (i) name of P; (ii) name and address of the person making the statement; (iii) how P meets the additional conditions;

22 (iv) time and date the statement is made; and (v) signature by the person making the statement. (5) Details on the consultation with the nominated person must include (a) notification if the nominated person supports the application or not, or has no opinion as to whether the measure is in P s best interests; and (b) how the nominated person has been consulted, the views of the nominated person and how any disagreements have been dealt with. (6) The statement required by paragraph 6(2) of Schedule 1 of the Act must include (a) details that the assessment has been carried out, by whom it was carried out and when; (b) specification of which of the things in section 4(1)(a) to (d) in the Act that P is, in the assessor s opinion, not able to do in relation to the measure because of an impairment of, or disturbance in the functioning of, the mind or brain; (c) A statement with the words In my opinion the person in section 1 of the authorisation lacks (or probably lacks) capacity to decide whether an application to Tribunal in relation to the extension should be made. ; and (d) signature by the person making the assessment. (e) for avoidance of any doubt details of a best interests determination as per paragraph (5) must always consider all steps in section 7 of the Act. (7) The statement by the responsible person must include the following (a) a statement using the words: In my opinion, based on the balance of probabilities, the criteria for continuation of the specified measures are met. ; (b) specifics on the measure; (c) name, address and role of the responsible person; (d) how the responsible person has met the requirements of section 42 of the Act; (e) how, in the opinion of the responsible person, the criteria for continuation have been met; (f) date when the statement was made; and (g) signature by the responsible person. Meaning of responsible person 47. If a social worker who is in charge of P s case is involved in the care or treatment of P and the measure for which the extension report is sought is relevant to that care or treatment the social worker can be the responsible person, subject to the conditions in Regulation The managing authority in a hospital or care home where P is an in-patient or resident may designate anyone who is involved in the care or treatment of P as the responsible person, subject to the conditions in Regulation If P is subject to a community residence requirement or attendance requirement the HSC trust in which P is residing may designate anyone who is involved in the care or treatment of P as the responsible person, subject to the conditions in Regulation To be a responsible person the person must (a) be suitably qualified to carry out a formal assessment of capacity and meet the requirements set out in regulations under section 14(4) in the Act; and (b) be unconnected with P. Information when making an extension report 51. (1) When an extension report is received by the relevant trust it must as soon as practicable provide the information in paragraph (2) to the persons in paragraph (3)

23 (2) The information that must be provided includes (a) a copy of the extension report including all annexes; (b) the procedure of the Tribunal; and (c) how to apply to the Tribunal. (3) The information in paragraph (2) must be provided to the following persons (a) the nominated person; (b) any person P has asked the information to be given to; and (c) the managing authority, or trust in the case of a community residence requirement, where the measure will take place. 52. If the extension report includes a statement under section 39(3) of the Act (a statement that in the opinion of the appropriate medical practitioner P lacks (or probably lacks) the capacity whether an application to the Tribunal should be made in respect of the authorisation) the Attorney General must be notified of the extension report and provided all the information in Regulation 51(2). Schedule 3 application PART 5 Extension by Schedule 3 authorisation 53.A person can make an application for an extension of a measure under Schedule 3 of the Act if he or she meets the criteria in Regulation 2. Form of application 54. (1) An application for authorisation under Schedule 3 of the Act must include (a) the information in Regulation 29(1)(a) to 29(1)(g)(vi)(viii); (b) if it is the first or a subsequent extension; and (c) the following additional annexes (i) Annex I including the views of the responsible person subject to paragraph (2); and (ii) if the measure is a deprivation of liberty or community residence requirement, Annex J including a statement whether P has capacity to apply to the Review Tribunal in respect of an authorisation by the trust panel subject to paragraph (3). (2) The views of the responsible person must include the following (a) specifics on the measure; (b) name, address and role of the responsible person; (c) how the responsible person has met the requirements of section 42 of the Act; (d) why the responsible person is not willing to provide a statement as per section 39(2)(d) of the Act; and (e) signature by the responsible person. (3) The statement required by paragraph 4(2) of Schedule 3 of the Act must include (a) details that the assessment has been carried out, by whom it was carried out and when; (b) specification of which of the things in section 4(1)(a) to (d) in the Act that P is, in the assessor s opinion, not able to do in relation to the measure because of an impairment of, or disturbance in the functioning of, the mind or brain;

24 (c) a statement with the words In my opinion the person in section 1 of the application lacks (or probably lacks) capacity to decide whether an application to Tribunal in relation to an authorisation granted by the trust panel should be made. ; and (4) signature by the person making the assessment. Medical report 55.The medical report must contain the same information as in Regulation 30(a) to (c). Care plan 56.The care plan must include the same information as in Regulation 32(a) to 32(d). Information 57. (1) When an application is received by the relevant trust it must as soon as practicable provide the information in paragraph (2) to the persons in paragraph (3). (2) The information that must be provided includes (a) the application including all annexes; (b) why the responsible person did not provide a statement as per section 39(2)(d) of the Act; (c) the procedures of the trust panel; and (d) how to make representation to the trust panel. (3) The information in paragraph (2) must be provided to the following persons (a) the nominated person; and (b) any person P has asked the information to be given to. 58. (1) As soon as practicable after granting or refusing an authorisation under paragraph 9 of Schedule 3 of the Act the panel must provide the information in paragraph (2) to the persons in paragraph (3)(a) to (c) (2) The information that must be provided include (a) the application including all annexes; (b) the reason for the granting or refusing an application; and (c) how to apply to the Tribunal. (3) The information in paragraph (2) must be provided to the following persons (a) the persons in Regulation 57(3)(a) and 57(3)(b); (b) the person who made the application; (c) the managing authority, or trust in the case of a community residence requirement, where the measure will take place; (d) if the measure is within section 41(2)(b) or (d) of the Act (deprivation of liberty or community residence requirement) and the application contains a statement mentioned in paragraph 4(2) of Schedule 3 of the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal) the Attorney General; and (e) a person employed by the RQIA who is designated by the RQIA as a person to be provided with information for the purposes of the Act. Sealed with the Official Seal of the Department of Health on *** Address Date Name A senior officer of the Department

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26 S T A T U T O R Y R U L E S O F N O R T H E R N I R E L A N D 2017 No. MENTAL CAPACITY AUTHORSIATION PANELS The Mental Capacity (Authorisation Panels) Regulations (Northern Ireland) 2017 Made xx Month 2017 Laid before Parliament xx Month 2017 Coming into operation in accordance with regulation 1. To be laid before Assembly The Department of Health, in exercise of the powers conferred by sections 297 of the Mental Capacity Act (Northern Ireland) 2016(a), makes the following Regulation: Citation, commencement and interpretation 59. (1) These regulations may be cited as the Mental Capacity (Authorisation Panels) Regulations (Northern Ireland) 2017 and shall come into operation on [date]. (2) In these regulations the Act means the Mental Capacity Act (Northern Ireland) 2016; care or treatment has the same meaning as the Act; the Department means the Department of Health (Northern Ireland); HSC trust has the same meaning as the Act; interim period means the period in Schedule 1 paragraph 20(5)(a). managing authority has the same meaning as the Act and any limitations imposed in regulations under section 306(6); measure has the same meaning as in section 41 of the Act; P means the person who is the subject of the application to the Panel requesting authorisation of a proposed intervention or treatment with serious consequences; panel means a panel constituted under Schedule 1 or Schedule 3 of the Act; permitted period has the same meaning as Schedule 1 paragraph 19 or Schedule 3 paragraph 9 of the Act; relevant HSC trust has the same meaning as Schedule 1 paragraph 2 or Schedule 3 paragraph 2 of the Act; (a) 2016 ch. 18.